USCA1 Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals
For the First Circuit

No. 97-2414

DAVID WOOLER,

Plaintiff, Appellant,

v.

SCOTT HANCOCK,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.

David Wooler on brief pro se.

Marc DeSisto, Kathleen M. Powers, and DeSisto Law Offices on
brief for appellee.

Entered: November 4, 1998

Per Curiam. Plaintiff David Wooler app

Hancock, the former town manager for the Town of Narragansett,

Rhode Island.

The underlying case is a diversity action in the

District of Rhode Island for alleged tortious interference with

a (prospective) contractual relation.

We conclude that summary

judgment was improperly granted.

On or about May 2, 1994, Wooler was hired by Betty
Cotter to work for Wilson Publishing Company as a reporter for
the Narragansett Times (the "Times").
cover the Town of Narragansett.

Frederick Wilson, III, was the

publisher of Wilson Publishing Company.

for the Times.

Wooler's job was to

Cotter was the editor

Cotter was also Wooler's direct supervisor from

the time he was hired until sometime later that same year when
Cotter went on maternity leave.
Shortly after Cotter went on leave, Hancock (and
possibly one or two other town officials) had a meeting with
Wilson about Wooler.

At the meeting, Hancock complained that

Wooler's coverage of the Town was too "negative."

He also

complained that he and Wooler had a personality conflict, and

he suggested that Wooler be transferred to another beat.
Sometime within the next two months, Hancock had lunch with
Wilson.

At this second meeting, Hancock stated that he would

like more "positive" stories about Narragansett.

On March 3,

1995, Wilson fired Wooler.

Almost one year later, Wooler filed the instant
complaint against Hancock alleging tortious interference with
his employment "contract."

Hancock moved for summary

judgment, and the matter was referred to a magistrate judge.

The magistrate judge issued a report recommending that summary

judgment be granted in favor of Hancock on the ground that
Wooler failed to produce any evidence demonstrating that
Hancock played a causal role in his termination.
timely objections to the magistrate's report.

Wooler filed

Upon review, the

district judge adopted the magistrate's recommendation.

This

appeal followed.
We review the grant of summary judgment de novo.
Hinchey v. NYNEX Corp., 144 F.3d 134, 140 (1st Cir. 1998).

In

doing so, we view all disputed facts and reasonable inferences

favorable to the nonmoving party.

Perez-Trujillo v. Volvo Car

Corp., 137 F.3d 50, 52 (1st Cir. 1998).

Summary judgment is

appropriate only if "there is no genuine issue as to any

material fact" and "the moving party is entitled to a judgment
as a matter of law."

Fed. R. Civ. P. 56(c).

The moving party

bears the initial burden of demonstrating that there are no

genuine issues of material fact for trial.
at 140.

Hinchey, 144 F.3d

After that, the burden shifts to the nonmoving party

with respect to each issue on which he bears the burden of

proof. Id.
Under Rhode Island law, the elements of a cause of
action for interference with a prospective contractual relation
are:
(1) the existence of a business
relationship or expectancy, (2) knowledge
by the interferor of the relationship or
expectancy, (3) an intentional act of

interference, (4) proof that the

interference caused the harm sustained,
and (5) damages to the plaintiff.
Mesolella v. City of Providence, 508 A.2d 661, 669 (R.I.
1986).

Thus, Wooler bears the burden of proof on the issue of

causation.
The evidence proffered by Hancock to negate an
inference of causation is strong.
deposition testimony of Wilson.

This evidence includes the

Wilson testified that he was

the person who made the termination decision, and that Wooler
was terminated because of his job performance.

According to

Wilson, Wooler was not producing enough articles.

In

particular, Wilson testified that a reporter in Wooler's

position is expected to produce five or six stories an issue
and that Wooler was not meeting this requirement.
at 33.

Wilson Dep.

Wilson further testified, unequivocally, that Hancock

had no impact on the termination decision except, perhaps, to

prolong Wooler's employment.
However, there is also evidence in the record tending
to support Wooler's version of events.

Although, as noted

above, the evidence is conflicting on this point, a fact-finder

could conclude that Hancock's complaints to Wilson were made
during the last two months of Wooler's employment.

Such a

conclusion lends some support to an inference that Hancock's

complaints caused Wooler's termination.

Cf. Oliver v. Digital

Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988) (observing that
a showing of discharge "soon after" the employee engages in

protected activity is indirect proof of a causal connection).

The possible inference is further strengthened by Cotter's
deposition testimony that Wilson seemed upset about Hancock's
complaints.

There is also evidence, in the form of a notice

of decision concerning Wooler's unemployment benefits, which

could be interpreted as demonstrating a link between Hancock's
complaints and Wooler's termination.
In addition, there is evidence based on which a jury
could question the credibility of Wilson's explanation for the
firing.

Among other things, there is evidence from which a

jury could conclude that Wooler was, in fact, producing the

requisite number of articles.

Moreover, Wooler submitted

copies of many of these articles.

More than one view of these

articles is possible, and a fact-finder might conclude that,

contrary to Wilson's suggestion, Wooler actually covered a
fairly broad range of non-controversial topics.

Finally,

Wooler proffered deposition testimony of Wilson to the effect

that he, Wilson, had heard that Hancock threatened to "freeze"
Wooler "out of town hall."

Although Wilson denied that the

threat concerned him or that it posed a problem for the

newspaper, a fact-finder might be skeptical of this denial.
For much the same reason, a fact-finder might be skeptical of
Wilson's emphatic statement that his decision to terminate
Wooler was not "in any way" affected by Scott Hancock.
We recognize that Wooler faces a formidable obstacle
in proving causation.

The issue turns on Wilson's state of

mind, and the most direct evidence of Wilson's state of mind

are his own statements.

It is not obvious what motive Wilson,

a non-party, would have to dissemble.

Nonetheless, the weighing of alternative factual
scenarios should ordinarily be left to the finder of fact after
trial.

Hodgens v. General Dynamics Corp., 144 F.3d 151, 172

(1st Cir. 1998); see also Greenburg v. Puerto Rico Maritime

Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987) ("The
precincts patrolled by Rule 56 admit of no room for credibility
determinations, no room for the measured weighing of
conflicting evidence . . . , no room for the judge to
superimpose his own ideas of probability and likelihood (no
matter how reasonable those ideas may be) upon the carapace of
the cold record.").

Although Wooler's evidence may be thin, we

do not think that this is a case in which the evidence is "so

one-sided that one party must prevail as a matter of law."
remand for further proceedings consistent with this opinion.
Vacated and remanded.

Id.(citatio